Battle Over Canadian River
Boundary Goes To High Court

By David Bowser

AUSTIN — A battle over a Texas Panhandle riverbed returns to the courts in February. The Texas Supreme Court has agreed to hear a decade-long argument over who owns the bottomlands along a 35-mile stretch of the Canadian River since the U.S. Bureau of Reclamation built a dam that cut the water flow.

Landowners below the Sanford Dam filed suit in 1989, claiming they are entitled to more land in the traditional riverbed because the dam, built in 1965 to form Lake Meredith, narrowed the flow of water in the Canadian River.

The landowners, including Texas oilman T. Boone Pickens, claim the land and underground mineral rights to the edge of the water flow, often no more than a trickle a couple of yards wide in this part of the river.

The State of Texas, represented by the General Land Office, maintains the boundary is the high water mark, the traditional boundary for more than 150 years, often more than a mile across. The state says the riverbed is public land and should be open for recreation. Proceeds from any oil and gas discovered in the riverbed, the Land Office contends, should benefit of the state school fund.

Judge M. Kent Sims, the trial judge in the case, ruled for the landowners in 1996. In February of this year, however, the Seventh Court of Appeals reversed the decision and sent it back to the trial court pending appeal. The Texas Supreme Court agreed to review the case and set a hearing for Feb. 10.

Judge Sims, who was defeated in November's election for the 31st District Court, said he doubts the case will ever end up back in the local courtroom. Following appeals through the state court system, he says he expects it to continue through the federal courts, possibly to the U.S. Supreme Court.

At issue in this potentially precedent-setting case is who owns the riverbed, a question, depending upon the resolution, that could impact rivers and water law across the nation.

"We're delighted the Supreme Court has agreed to hear the case," says Dallas lawyer Michael Powell, who represents the landowners.

Powell says the original patents, or deeds, state that his clients' land borders and abuts the river.

The argument is over what constitutes the edge of the river, whether it is where the water flows or where it once flowed. Even before the dam, during dry seasons, the river was rarely more than a trickle fed by springs along the riverbed, but during heavy rains, it could be a raging torrent more than a mile in width. The difference amounts to more than 14,000 acres.

State Land Commissioner Garry Mauro, who also won't be in office when the Texas Supreme Court hears the case, says he is looking forward to getting the dispute resolved. Mauro ran for governor in November, and was handily defeated by Gov. George W. Bush.

"I feel certain the Supreme Court will rule in favor of the Permanent School Fund, just as the Seventh Court of Appeals in Amarillo did," Mauro says.

A spokesman for the Land Office, Ron Calhoun, says river bottoms throughout the state generate about $4 million a year for the school fund which supports public education.

Calhoun says oil and gas are not being produced in the river bottom along the 35-mile contested strip of the Canadian because of the litigation. With crude oil prices dropping in the Texas Panhandle to eight dollars a barrel at the wellhead, exploration in the region is slowing.

"If every adjacent landowner decides he can challenge the state because a river doesn't look like a river anymore," Calhoun says, "it's going to cost the state quite a bit of money."

Powell cites longstanding riparian law, which he says traditionally holds that the boundary of a river moves with the water.